LMJ Construct's appeals against irregularity declaration for tractor vehicle offers rejected for loss of interest
Appeals rejected: LMJ Construct's annulment appeals against the irregularity declaration of its offers for lots 2 and 5 of a framework agreement for tractor vehicles for the federal police are rejected for lack of interest — because LMJ only challenged the irregularity declaration and not the award or non-award decision, those decisions became definitive after sixty days and any chance of obtaining the contract was lost. Interest aimed merely at facilitating a damages claim is insufficient.
What happened?
The federal police tendered a supply contract under a multi-year framework agreement for the purchase and maintenance of tractor vehicles and equipped trailers, divided into six lots, via an open procedure. Lot 2 concerned trailers for transporting police barriers ('Spanish riders'), lot 5 concerned trailers for MATTA operations. Both lots comprised one item and two required options (anti-tilt support system and ten-year maintenance contract). The specifications required tenderers to propose delivery terms in calendar days. LMJ Construct submitted offers for lots 2, 4, 5 and 6. On 25 November 2022, the Minister of Home Affairs decided on all lots. LMJ's offers were declared irregular for all lots on the same ground: the three stated delivery periods were marked as 'estimated', meaning no binding commitment on delivery times. Lot 2 was awarded to A&C Noyens, the only compliant tenderer. Lot 5 was not awarded because the sole compliant offer's price was considered too high. LMJ filed annulment appeals on 27 January 2023, but exclusively against the irregularity declarations for lots 2 and 5 — not against the award decision for lot 2 nor the non-award decision for lot 5. Separate appeals against lots 4 and 6 were rejected by ruling no. 259,080. The respondent raised an inadmissibility objection: since LMJ did not challenge the award and non-award decisions, those became definitive after the sixty-day appeal period, and annulment of the irregularity declaration could no longer lead to a chance of obtaining the contract. LMJ argued that losing a chance of award constitutes sufficient interest and that the definitive decisions should be set aside under Article 159 of the Constitution. The Council rejected the appeals, distinguishing between sufficient interest (chance to obtain the contract) and insufficient interest (merely having the act declared unlawful to support a damages claim). Article 159 cannot be invoked against individual administrative acts that have become definitive because no annulment appeal was filed within sixty days — this rule safeguards legal certainty.
Why does this matter?
This ruling confirms established case law on loss of interest in annulment appeals in public procurement. Challenging only the irregularity declaration without challenging the award or non-award decision leads to loss of interest once that latter decision becomes definitive after the sixty-day appeal period. Interest aimed merely at supporting a future damages claim is insufficient for an annulment appeal. Article 159 of the Constitution provides no remedy: a definitive individual administrative act cannot be challenged before the administrative court, even by way of an illegality exception.
The lesson
As tenderer: always challenge all related decisions simultaneously — not just the irregularity declaration of your offer, but also the award decision or the decision not to award. Failing to do so means those decisions become definitive after sixty days and you lose all interest in the appeal against the irregularity declaration. An annulment ruling that only provides moral satisfaction or aims to facilitate a damages claim is insufficient. As lawyer: the scope of the appeal defines the boundaries of the debate. Too narrow a scope can be fatal.
Ask yourself
As tenderer, have I filed an appeal against all related decisions (irregularity declaration, award, non-award) within the sixty-day appeal period? Or have I only challenged the irregularity declaration, risking the award decision becoming definitive? Have I formulated the scope of my appeal broadly enough?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →